ICE Worksite Raids – What Employers Should Know

Immigration enforcement has been the focal theme of the Trump administration.  Immigration issues and compliance continue to be often times, complex, and misunderstood by many.  It is more important now than ever for employers to not only be compliant, but also be well informed about their rights and duties in the event of a worksite raid by Immigration and Customs Enforcement (ICE).

Here are few pointers:

  • Designate Staff to interact with ICE

Employers should designate staff to interact with ICE agents during the raids. The designated people should call the company lawyer immediately upon arrival of ICE.  The lawyer may be able to come to the worksite quickly to assist or speak to the ICE officers over the phone.   The designated representative would also be responsible for determining whether the agents have a proper legal warrant and should deny the agents entry if they do not have the necessary warrant to search the work premises. 

The representative can accept the warrant but not consent to the search; if the search still proceeds, it can be challenged later if there if there are grounds to do so.

  • ICE must have a valid search warrant or express consent to enter non-public areas of a workplace.

ICE officers cannot enter private areas of a workplace without express consent of the company representative or a valid judicial search warrant.  A valid warrant must be signed and dated by a judge and include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, etc.).

  • All workers have the right to remain silent

All employees regardless of their immigration status have legal rights, including the right to remain silent.  It is advisable that employees exercise their right to remain silent and request to speak with their attorney.  Employees may also refuse to show identity documents that disclose their country of nationality or citizenship.

  • Document what ICE agents do during a raid

Company representatives should document ICE’s actions during a raid as it is within their rights to do so; this becomes particularly important in situations where consent to the search is not given.  The following should be noted and/or recorded:

  • Names of the ICE agents
  • Property, equipment seized
  • Names of people questioned and the type of questions asked by ICE agents
  • Names of people detained
  • If any use of force or intimidation by the agents

(Resource: www.aila.org)

Zeenat Phophalia, Esq., Senior Associate

Keywords: Immigration and Customs Enforcement, ICE, Worksite, Raids

Get ready for FY 2020 H-1B Cap Season

It is time to begin preparations for the new H-1B (cap-subject) filing season. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions on April 1, 2019 for Fiscal Year (FY) 2020, which starts on October 1, 2019. 

Each FY, there are only 85,000 new H-1Bs of which 65,000 are for foreign nationals with a bachelor’s degree (or equivalent education) from a U.S. or foreign college or university, and 20,000 for foreign nationals with an advanced degree from a U.S. college or university. 

It appears that for FY 2020, the USCIS will receive more petitions than there are H-1B visas available, necessitating a lottery.  This is similar to what has transpired over the past few years.  In view of this, all petitions received in the first five business days from April 1, 2019 onwards, (i.e. until April 5, 2019) will be included in the lottery.  Employers who wish to employ foreign nationals on H-1Bs must file their H-1B petitions during the first five working days of April. Hence businesses must begin assessing their needs now, identifying their potential H-1B candidates and begin collating the paper work. 

In December 2018, the USCIS proposed on online pre-registration and selection process.  Additionally the USCIS has also proposed a reversal in the order by which H-1B petitions are selected in the lottery.  Under these new rules H-1B beneficiaries possessing a master’s degree or higher from a U.S. college or university stand a better chance at being picked up in the lottery than they did in the past. 

The USCIS has indicated that this new on-line pre-registration will be implemented for FY 2020 but it appears that this might not happen.  However, the USCIS might still go ahead and reverse the lottery selection process whereby the beneficiaries possessing a master’s degree or higher from a U.S. college or university shall be pooled with the general 65,000 H-1Bs. Those beneficiaries possessing a master’s degree or higher from a U.S. college or university that do not get selected in the general lottery will be subject to an additional selection applicable to only this class of beneficiaries to fill the 20,000 H-1Bs allocated for them. 

By way of background, the H-1B non-immigrant visa is for foreign nationals seeking to work in “specialty occupations,” or occupations that require the application of specialized knowledge which is generally fulfilled by requiring at least a bachelor’s degree, or equivalent, in a specialized field. The job should require a bachelor’s degree, or equivalent and the candidate should have a bachelor’s degree, or equivalent in a relevant specialized field. 

Keywords: H-1B, Cap, Bachelor’s degree, USCIS, Speciality Occupation, Non-immigrant visa

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